'Detention is arbitrary and inhumane, whatever form it takes

The catastrophe of detention is so huge, it's hard to put into words.

I don't agree with any form of detention, whether it lasts a day or an hour, in the community or in a locked centre. Administrative detention of any group of people is arbitrary and inhumane, whatever shape it takes.

That is the only way to assist the rehabilitation of a group of people who are fleeing from situations of extreme trauma and cruelty.

We must not advocate for the detention and security industry under any circumstances. To do so compromises the lives and wellbeing of the refugee community.

Ramesh Fernandez spent three years in detention in Australia after fleeing the Sri Lankan civil war in 2001. He now runs RISE (Refugees, Survivors and Ex-detainees) in Sydney.

'A pragmatic and humane necessity'

The hugely damaging emotional and economic effects of detention mean we must continue to explore other options. These can be divided into (i) improving conditions inside detention (ii) shifting towards alternative forms of detention and (iii) developing alternatives to detention.

We always fight for release and alternatives to detention. But in cases where that is not feasible, we seek alternative forms of detention that are less damaging, less restrictive and cheaper than traditional penal models.

Detention in jails should not be used. Thousands are in custody who pose no danger to the community or national security. Penal conditions are not only inhumane, they are fiscally irresponsible and inefficient and have not been shown to deter irregular migration.

The US has successfully used various models of alternatives to detention, as a more humane way of ensuring that individuals comply with immigration policy. These programmes are cheaper and proven to mitigate state worries that migrants will go underground ('flight risk') and refuse to return home. The Lutheran Immigration and Refugee Service reports that non-custodial alternatives have resulted in compliance rates of between 93 and 96 per cent.

The promotion of alternatives is a welcome step forward. But there is a problem. In the past two decades, the use of custodial detention as an immigration enforcement mechanism in the US has more than tripled. Congress actually has a 'bed mandate' where it requires Immigration and Customs Enforcement to maintain and fill 34,000 detention beds in prison-like facilities and jails.

While this bed-mandate remains in place, an expansion of alternatives to detention will not result in a drop in the use of custodial detention. We are in urgent need of a fundamental review of what constitutes a detention bed, versus release.

But as we push for reform to immigration law, alternatives remain a pragmatic, humane and efficient necessity.

Michelle Brane is the Director of the Migrant Rights and Justice programme at the Women's Refugee Commission in the US.

YES: Dr. Michael Flynn is the founder and coordinator of the Global Detention Project based at the Graduate Institute’s Global Migration Centre – which tracks the growth of detention infrastructure worldwide. His recent papers include: ‘The Hidden Costs of Human Rights: The Case of Immigration Detention’ (September 2013) and ‘On the Unintended Consequences of Human Rights Promotion on Immigration Detention’, in March 2012.
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YES: Dr. Michael Flynn is the founder and coordinator of the Global Detention Project based at the Graduate Institute’s Global Migration Centre – which tracks the growth of detention infrastructure worldwide. His recent papers include: ‘The Hidden Costs of Human Rights: The Case of Immigration Detention’ (September 2013) and ‘On the Unintended Consequences of Human Rights Promotion on Immigration Detention’, in March 2012.

Alternatives can be a way for states to look good - and continue detaining

The global campaign for countries to adopt non-custodial measures in their treatment of irregular migrants and asylum-seekers has energized policymakers. Numerous states - from Europe to the Americas to Asia - have adopted alternatives, and rights watchdogs like the UN High Commissioner for Refugees and the Special Rapporteur on the Human Rights of Migrants have made them a cornerstone of their advocacy.

It has had some success. The discourse and, in some instances, policy on immigration detention has shifted. But in all but a few notable cases, this has failed to reduce detention overall. For instance, in a 2011 study on the impact of non-custodial measures in Britain, Jesuit Refugees Service Europe reported that the UK Border Agency's capacity 'to detain is not diminished by the existence of these [reporting and electronic tagging] measures. In fact, the number of spaces available to detain migrants continues to increase.'

This points to a potentially inherent weakness in alternatives advocacy. While individuals and families have undoubtedly benefited in some countries, the overall impact seems to have been to give authorities new tools to keep larger numbers of people under surveillance. Officials can also point to these alternatives as a sign of their progressive immigration control measures, even as they persist in detaining large numbers of people.

Alternatives are in need of evidence and indicators. If the use of detention is disproportionate, then the best indicator of success would be an observable decline in the numbers of people being detained in those places that have implemented alternatives. One way to achieve this would be for alternatives to be linked to non-detention policies. In Belgium, for example, the adoption of open housing units for families was linked to a policy of non-detention in the first instance. Without these kinds of links, alternatives are just a way for states to look good.

Michael Flynn heads the Global Detention Project, based at the Graduate Institutes Global Migration Centre in Geneva, Switzerland.

Let's end this war between states and migrants

Alternatives to detention are a radically different approach for states and yet utterly normal. States manage to pursue other policy objectives without locking people up, the vast majority of the time - why is immigration any different? Perhaps because governments are prioritizing dramatic gestures to satisfy public and tabloid anxieties.

The knee-jerk resort to coercion makes migrants resist, as they feel unjustly treated. Some alternatives, like reporting requirements, are less coercive, so feel less unjust. But they still perpetuate distrust and confrontation. That is why Britain has an exceptionally low take-up of voluntary return - only 16 per cent, compared to 83 per cent in Sweden.

Alternatives should mean treating migrants as people - engaging with their concerns and needs instead of locking them up.

Time after time, governments have found that talking with migrants, giving them the right information leads to more deciding to return voluntarily. And it often reveals that some of those migrants are entitled to stay.

Alternatives are anything that allows irregular migrants to live in the community, meeting their needs - from legal advice to stable accommodation to being with their families - as well as governments' immigration control agenda. They do not have to be large-scale state initiatives, and can be as diverse as the needs of migrants themselves.

Community groups and NGOs have developed some of the most influential alternatives that have got people out of detention and show that it is not necessary. We work with 'un-returnable' migrants who have spent years detained in Britain because they are considered to be at high risk of breaching the conditions of their release. They are now participating in the life of our organization, campaigning, speaking out about their experiences. We help them cope with the challenges of life outside. So far, no-one has breached the terms of their release.

The choice is stark. We are faced with ever more enforcement, criminalization and brutalization of migrants, leading to war without end between the infrastructure of state coercion and the resistance of individual migrants - or something different.

Jerome Phelps is director of Detention Action.

'Detention cannot be reformed. It should be abolished - like slavery'

Refugees and migrants should not be detained. The numbers detained in Britain under immigration rules have increased from 250 in 1993 to about 3,600 now. People are held without time limit and without judicial process. There have been many suicides.

The idea that detention could stop, or be reformed, without abolishing immigration controls altogether, is unrealistic. If people are to be forcibly returned to their countries of origin, then detention is inevitable.The problem is not the conditions of detention but the detention of innocent people itself, which is inherently cruel. There is no humane way of deporting people against their will, or of preventing them fleeing from danger and poverty.

Governments' attempts to obstruct free movement do not work well. They are therefore resorting to more brutality. The use of detention, destitution and armed force to drive people out, or to stop them getting here, is escalating.

Moreover the cruelty is deliberate; it is meant to deter. Immigration policies are based on the assumption that if conditions are made sufficiently unbearable, fewer people will try to come. British Home Secretary Theresa May has said it publicly: the aim is to create a 'hostile environment'.

Yet even supposing it were realistic that the 'cases' of refugees and migrants could be 'managed in the community', with less use of detention, the notion that they should be 'managed' at all is unacceptable.

Currently, the decisions about whether or not people can be refugees, get spouse visas, or live or work in this country, are grossly arbitrary and unjust.

I do not believe that immigration controls, including detention, can be reformed. We should get rid of them like slavery, apartheid and other ills.

Teresa Hayter is a writer and activist, and a member of No One Is Illegal.

Web exclusive debate: Does making detention more humane make it more widespread? Michael Flynn and Michelle Brane go head to head.

Sources: Forced Migration Review. Issue 44, September 2013; There are alternatives - a handbook for preventing unnecessary immigration detention, International Detention Coalition, 2011.

Not detained, not too happy. A child refugee standing on her bed in a centre for asylum-seekers in the Netherlands, where families live in one small room, often for several years.
Not detained, not too happy. A child refugee standing on her bed in a centre for asylum-seekers in the Netherlands, where families live in one small room, often for several years.
Martin Roemers / Panos

What's the alternative?

Civil society groups are pushing governments to track migrants in ways that reduce stress, severe anxiety and depression, and allow for greater liberty. Aimed at minimizing detention, some alternative programmes are small-scale, while the cost of others runs into hundreds of millions of dollars.

Welcome centre

Pikpa is a centre on the Greek island of Lesvos run by volunteers on 'principles of solidarity and respect'. The self-organizing group Village of All Together cleaned out wood cabins formerly used for a summer youth camp, collected food and clothes and brought destitute new arrivals in from the streets. Without access to any external funds, Pikpa is living proof that it is possible to register and welcome refugees without detaining them.

Non-custodial detention

Britain has various mechanisms for managing migrants in the community. All are of the coercive, intrusive variety - among them electronic tagging and frequent reporting, often at out-of-the-way centres. Migrants may be required to report daily, weekly or monthly. Tagging is often associated with curfews, and can cause emotional distress and physical discomfort from chafing. Reform advocates describe it as an alternative form of detention.

Open family units

Launched in 2008 in Belgium, in the wake of a successful campaign to end child detention. Asylum-seekers live in open accommodation and are assigned a coach, who assists with legal matters and acts as a go-between with the immigration authorities. Children can attend school, parents can shop with vouchers, pray, see lawyers and receive visitors to allow for 'continuity'.

Focused on families who are tipped for removal, it stands or falls on trust. A study by the Jesuit Refugee Service showed that those who felt the asylum process was fair - around 80 per cent - stayed put and agreed to leave Belgium.

Community management

Australia combines offshore processing in notorious camps with a holistic, social services approach for vulnerable migrants and families. In 2012-13, 3,441 people were housed in a community setting where they are supervised by local groups who enable access to healthcare, welfare and casework. A review after four years found that less than one per cent had absconded.

Yet asylum-seekers still feel that their lives are in limbo. Cases can drag on for years, and a curfew, lack of money and restrictions on working rights create tension.

This method is also used in Sweden (since an outcry over detention conditions in the 1990s) and the US in the form of 'supervised release'.

Focus on vulnerable groups

A growing clamour to release children has had some success. Finland, Poland and Britain have made commitments to end it, as has the French president; Japan released all children from detention in April 2010.

Controversially, the children's charity Barnardos is contracted by Britain's Home Office to run a short-term detention centre for families.

Malaysia and Thailand have been persuaded to release refugees registered with UNHCR. Campaigners have won clemency under the law for torture survivors and victims of trafficking, but with little success in practice.